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Under an agreement signed on January 25, 2005 between the
United Nations High Commissioner for Refugees (UNHCR) and the governments of
Cambodia and Vietnam, Montagnards who do not qualify as refugees and refuse to
repatriate, and those deemed to be refugees but refuse to resettle abroad, are
to be returned to Vietnam. The 700 Montagnards under UNHCR protection in Phnom Penh at the time the agreement was signed were told to make their decisions by March
24.
There is nothing in the agreement to ensure that
repatriation chosen in such circumstances is truly voluntary. The agreement
provides no guarantees of UNHCR access to the Vietnam's Central Highlands to
monitor the safety of those who are repatriated. It states only that the
Vietnamese Government and UNHCR will consult and cooperate on visits to the
returnees at an appropriate time. 19
Any return program implemented under such coercive conditions is counter to
UNHCR's own guidelines on voluntary repatriation.20 Forced return of
Montagnards to Vietnam under current conditions risks violation of Cambodia's non-refoulement obligations under international refugee and human rights law.21
More than 200 of the approximately 650 Montagnards currently
under U.N. protection in Phnom Penh, including some who have been recognized as
refugees by UNHCR, have refused the option of third-country resettlement. Some
are fearful that they will never see their families in Vietnam again if they resettle abroad. Others want to wait in Cambodia until the problems in the
Central Highlands are resolved. Most remain deeply afraid of what awaits
them if they return home now.
The agreement commits Cambodia to continue to provide
temporary protection to Montagnard refugees and asylum seekers. However Human
Rights Watch continues to receive reports of Cambodian authorities forcibly
returning Montagnard asylum seekers back to Vietnam. Less than a week
after the January agreement was signed, Cambodian authorities arrested and
deported six Montagnard asylum seekers in Ratanakiri province.
The agreement also commits Vietnam not to punish returnees
for their departure from Vietnam, which the agreement describes as
illegal. However, according to first-hand accounts collected by Human
Rights Watch, even Montagnards who have voluntarily returned to Vietnam since 2001 have been harassed by Vietnamese authorities. Some are placed under
police surveillance and house arrest upon return, or are regularly summoned to
the police station for questioning about their activities.22
More worrying still, the new agreement makes no promises
that the Vietnamese government will not punish or prosecute returnees for
practicing their religion or expressing their political opinions. Human
Rights Watch has documented numerous cases of abuse and torture against
activists, religious leaders, and individuals who have been deported or have
voluntarily returned from Cambodia.23
The agreement is premised on assurances from Vietnam that any individuals returned will not be persecuted. The information cited above,
which because of the lack of access to the area tells only part of story, makes
it clear that these assurances cannot be taken at face value. Without a
sufficient international monitoring presence in the Central Highlands, such as
by UNHCR, there is no reason to believe the assurances have any meaning.
VI. Recommendations
To the Socialist Republic of Vietnam:
- Allow Montagnards to organize independent religious
organizations to freely conduct religious activities. Churches and
denominations that do not choose to join one of the government-authorized
religious organizations whose governing boards are subject to government
approval should be allowed to independently register with the government.
- Release or grant amnesty to all Montagnards imprisoned or
detained because of their non-violent religious or political beliefs.
- Investigate reports of beatings, torture and arbitrary
detention of Montagnards. Those responsible for these violations should be
brought to justice.
- Cease the religious repression of Montagnards, including
bans on religious gatherings and other meetings, pressure to renounce
ones faith, mandatory participation in non-Christian rituals, destruction
and closure of churches by local authorities and security officials, and
intrusive police surveillance of religious leaders.
- Ensure that all domestic legislation addressing religious
affairs is brought into conformity with international law, such as the
International Covenant on Civil and Political Rights to which Vietnam is a party. Amend provisions in domestic law that can be used to criminalize
certain religious activities on the basis of imprecisely defined national
security crimes.
- Amend the 2004 Ordinance on Beliefs and Religion and
Instruction No. 01/2005 to include specific disciplinary measures for
officials who continue to force people to renounce their religion.
- Permit outside experts, including those from the
United Nations and independent international human rights organizations,
to have unescorted access to Montagnards in Vietnam, including members of
denominations not officially recognized by the government.
- Invite the U.N. Special Rapporteur on Religious
Intolerance, the U.N. Working Group on Arbitrary Detention, and the U.N.
Special Rapporteur on Torture to visit Vietnam to investigate incidents of
religious persecution, torture, arbitrary detention and other rights
abuses committed against Montagnards, including members of churches that
are not officially sanctioned by the government.
- Provide asylum to Montagnard refugees for as long as the
conditions for their safe and dignified return to the Central Highlands of
Vietnam do not exist.
- Issue such refugees with identity documents to indicate their
legal status in Cambodia.
- Refrain from any forced returns of Montagnards to Vietnam under present conditions, in accordance with the absolute obligation of
non-refoulement.
- Re-evaluate the tripartite agreement of January 26, 2005
and insist in upcoming tripartite meetings between UNHCR and Cambodian and
Vietnamese officials that strengthened provisions be included to ensure
that (a) refugee decisions on durable solutions are fully informed and
voluntary and (b) UNHCR has full and unfettered access to returnees inside
Vietnam.
- Provide improved counseling services in Phnom Penh to help
Montagnard refugees and asylum seekers freely decide whether to repatriate
or resettle abroad, while simultaneously decrying any violation or
threatened violation by the Cambodian government of the absolute
obligation of non-refoulement.
- Do not provide services facilitating return (including
voluntary repatriation) of Montagnards from Cambodia until adequate
international monitoring is in place in the Central Highlands.
- Ensure that all of the Montagnard shelters in Phnom Penh, including those that house rejected asylum seekers are managed under UN
protection. Cooperate with the Cambodia Office of the High Commissioner
for Human Rights to ensure that rejected asylum seekers have access to
protection against refoulement in accordance with Cambodias obligations under the Convention Against Torture and the International Covenant
on Civil and Political Rights, and together decry any violation of these
absolute human rights obligations.
- Advocate for continuation of Vietnams designation by the
United States as a Country of Particular Concern for its violations of
the right to religious freedom until substantial, concrete progress is
made, specifically by releasing all Montagnards imprisoned for peaceful
expression of their religious beliefs; allowing minority religious
organizations to register with the government and operate independently,
should they choose to do so, with leaders they select themselves; and
ceasing the practice of forced renunciation of religious belief.
- Press for revision of the January 2005 tripartite
agreement between UNHCR, Vietnam and Cambodia in order that strengthened
provisions be included to ensure that (a) refugee decisions on durable
solutions are fully informed and voluntary and (b) UNHCR has full and
unfettered access to returnees inside Vietnam.
- Press the Vietnamese government to streamline the
procedures for family reunification of Montagnards in Vietnam for those who have received authorization from resettlement countries to join
family members who have resettled abroad.
[19] In 2002,
despite Vietnam's promises that UNHCR would be able to monitor conditions in
the Central Highlands, Vietnamese authorities denied permission for the UNHCR
field team to visit potential returnee villages during one of UNHCR's first
assessment missions. See Human Rights Watch, Repression of Montagnards:
Conflicts over Land and Religion in Vietnams Central Highlands, 2002, pp.
134-138.
[20] See UNHCR
Handbook on Voluntary Repatriation, 1996.
[21] That is,
Article 3 of the Convention Against Torture and Article 33 of the 1951 Refugee
Convention.
[22] For
additional testimonies about mistreatment of returnees, see Vietnam: Torture, Arrests of Montagnard Christians, Human Rights Watch Briefing Paper,
January 2005.
[23] See Vietnam: Torture, Arrests of Montagnard Christians, Human Rights Watch Briefing Paper,
January 2005.
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